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In a decision that surprised the state and the defense, the first inmate to face a jury under Texas’ “sexually violent predator” civil commitment law got a “get out of treatment free card” on April 5. The controversial law, enacted Sept 1, 1999, allows the state to commit the worst sexual offenders to outpatient treatment after they’ve completed their prison sentences, but defendants may contest the commitments in a civil trial. Even though the U.S. Supreme Court blessed such laws in 1997′s Kansas v. Hendricks, defense lawyers are challenging Texas’ law, arguing it’s unconstitutional because it seeks to further punish criminals after they’ve already done their time. Three prior civil commitment cases settled with inmates agreeing to commitment; there are 21 additional cases pending. Yet for all the concern about the law, the Montgomery County jury found that Billy Glenn Johnson — a 35-year-old prisoner from Marshall, Texas, with two rape convictions on his record who is scheduled for release in November — was not likely to re-offend. The jury has to make its decision beyond a reasonable doubt — the usual standard for a criminal case, even though the proceeding is civil. “I was somewhat surprised [by the decision]. But I think we had a good case,” says Ken Balusek, director of civil commitment services for the State Counsel for Offenders Office who defended Johnson. “I don’t think our client was the kind of person the statute was meant for.” Even with the two rape convictions — the last of which Johnson committed in 1987 while in prison — the jury believed he was a changed man, Balusek says. Johnson took the stand, looked the jury in the eye, and calmly told the panel of eight women and four men that he was not the same person who entered prison in 1985. “I think that was key,” Balusek says. “We talked to the jury afterward and they thought our client had really changed.” ONE DOWN Chris Thetford, a lawyer with the civil division of the Special Prosecution Unit who sought to civilly commit Johnson, is equally surprised with the outcome, given the initial negative reaction from some of the venire members when they learned they would be asked to hear the civil commitment case of a rapist. “During the voir dire, it was amazing,” Thetford says. “I literally had women raise their hands crying, saying they didn’t want to be in the room with him.” But the jury fairly judged the case and the law, Thetford says. “All of them said they loved the law,” Thetford says. “The other thing that is significant is I’ve gone for a year now hearing from the other side that this system is not fair and there’s no way they’re going to get a fair trial. And I think this shows that the system is fair.” In January 2001, Judge P.K. Reiter — one of two retired judges who hears civil commitment cases in Texas — ruled that Texas’ civil commitment law is constitutional. Lawyers from the State Counsel for Offenders Office say they are appealing that declaratory judgment ruling to Beaumont’s 9th Court of Appeals. Last month, Reiter also issued a ruling on a Daubert motion, finding that all the expert testimony for pending civil commitment cases in Texas and the science used on both sides were adequate. The outcome didn’t surprise Lee G. Alworth, the retired judge who heard Johnson’s case; however, he says it was interesting that more venire panel members weren’t struck for cause and that neither side let the case get bogged down with scientific testimony. The first-of-its-kind Texas trial lasted four days. By law, the venue for all the state’s civil commitment cases is Montgomery County. “I was really surprised that we tried it as fast as we did without any major problems,” Alworth says. “I told Judge Reiter, ‘I’m resident expert on civil commitment cases. Now I’ve tried one.’ “

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